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Detention Of A Person Despite Furnishing Of Personal Bond Violative Of Article 21: Allahabad High Court

Akshita Saxena
19 Feb 2021 12:07 PM GMT
Detention Of A Person Despite Furnishing Of Personal Bond Violative Of Article 21: Allahabad High Court
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The Allahabad High Court has held that keeping a person in custody, despite his furnishing personal bonds as required by the magistrate, is violative of his right to personal liberty guaranteed under Article 21 of the Constitution. A Division Bench comprising of Justices Surya Prakash Kesarwani and Shamim Ahmed recently pulled up an Executive Magistrate for failing to release two...

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The Allahabad High Court has held that keeping a person in custody, despite his furnishing personal bonds as required by the magistrate, is violative of his right to personal liberty guaranteed under Article 21 of the Constitution.

A Division Bench comprising of Justices Surya Prakash Kesarwani and Shamim Ahmed recently pulled up an Executive Magistrate for failing to release two persons, arrested on apprehensions of breach of public peace, despite their furnishing personal bond and other papers.

It observed that Section 107 CrPC requires a person to provide security/ execute a bond for peace keeping. It thus held that keeping a person in custody, despite fulfilment of conditions contained in the CrPC, is violative of Articles 14 and 21 of the Constitution.

"In his counter affidavit, the respondent no.3 (Magistrate) has tried to justify his arbitrary action and clear breach of statutory duty cast upon him as well as the fundamental rights guaranteed under Article 14 and 21 of the Constitution of India," the Court sternly remarked.

Background

Significantly, Section 107 CrPC requires the Magistrate, receiving the information that any person is likely to commit a breach of the peace and is of opinion that there is sufficient ground for proceeding, he may require such person to show cause why he should not be ordered to execute a bond for keeping the peace a period not exceeding one year.

In the instant case, the Petitioners were arrested under Section 151 CrPC on October 8, 2020. A Challani Report was submitted by the Police on the same day to the Sub Divisional Magistrate, Varanasi, under Section 151 (Arrest to prevent commission of cognizable offences), 107 (Security for keeping the peace) and 116 (Inquiry as to truth of information) CrPC.

The Petitioners submitted personal bond and other papers on October 12, 2020 but the Magistrate did not release them and instead, under the pretext of verification, directed the file to be placed on October 21, 2020.

The Magistrate directed the concerned Tehsildar to verify the revenue records produced by the sureties. Thereafter, the petitioners were released on October 21, following which they approached the High Court against alleged arbitrary and illegal detention between October 12 and October 21.

There were two issues that the Court was required to address:

1) Was the detention between aforesaid period after furnishing of Personal Bonds justified?

At the outset, the Bench observed that despite submission of personal bond and other papers by the petitioners before the Magistrate, they were not released and that too against the Magistrate's own order that the petitioners shall be detained "till presentation of personal bond".

It thus held,

"Non release of the petitioners by the respondent no.3 even after submission of personal bond/bond and other papers, is a clear breach of Article 21 of the Constitution of India, by the respondent no.3 which resulted in illegal detention of the petitioners at least since 12.10.2020 to 21.10.2020."

The Bench further noted that in his counter affidavit, the Magistrate had tried to justify his arbitrary action and clear breach of statutory duty cast upon him.

It observed that in the impugned order, the Magistrate failed to comply with Section 107 inasmuch as he did not record his satisfaction as to existence of sufficient ground to seek bonds for peacekeeping.

"The aforesaid order dated 8.10.2020 would further reveal that the respondent no.3 has not required the petitioners to show cause that why they should not be ordered to execute a bond with or without sureties. Thus, the respondent no.3 has committed clear breach of mandate of Section 107 Cr.P.C,," the Bench opined.

Furthermore, it noted that the Magistrate had proceeded in breach of Section 111 of CrPC, which requires a Magistrate, acting under section 107, to make an order in writing, setting forth (i) the substance of the information received, (ii) the amount of the bond to be executed, (iii) the term for which it is to be in force, and (iv) the number, character and class of sureties (if any) required.

"These necessary ingredients of Section 111 Cr.P.C. are totally absent in the order dated 8.10.2020 passed by the respondent no.3. Thus, it is evident on record that the respondent no.3 has acted arbitrarily and illegally," the Bench said.

It added,

"The facts, afore-noted, leave no room of doubt that the respondent no.3 has acted arbitrarily and not only failed to discharge his duty cast upon him under Section 107 and 111 Cr.P.C. but also committed breach of Article 14 and 21 of the Constitution of India. Such type of instances need to be stopped by the State Government."

2) Can Challani Report be in a printed form?

The Challani Report submitted by the police was on a printed proforma, and merely name of the petitioners and others, name of village and "land dispute" were written by ink.

The Court had asked the Police authorities to file an affidavit, showing under what circumstances the Challani Report was issued on printed proforma, without disclosing any specific reasons.

"They shall also show cause for not obeying the law laid down by this Court in the case of Amit Jani vs. State of U.P. and others, 2020 (112) ACC 574," the Court said in its order dated January 13.

When the matter came up January 27, the Court came down heavily upon the Police authorities for failing to file the counter affidavit as aforesaid,

"We are left with no option, except to call for personal presence of the respondent no.1, requiring him to show cause as to why exemplary cost may not be imposed for not filing counter affidavit, particularly when the petitioners were admittedly, illegally detained from 12.10.2020 to 21.10.2020," the Court said.

On February 2, 2021, the Court was informed by way of an affidavit that the State Government has taken corrective action in the matter and has issued circulars to restrain the Magistrates from using printed proformas.

In this backdrop, the Court finally held,

"From the facts briefly noted above and the counter affidavit of respondent no.1, it stands admitted that the police authorities are arbitrarily and illegally submitting Challani Reports under Sections 107/116 Cr.P.C. Since the respondent no.1 has taken steps to correct the mistakes and illegalities, therefore, we do not propose to issue any further direction in that regard."

Know the Law

Use of printed proformas for submitting Challans, summoning accused, etc. has been time and again discouraged by the Courts.

Cognizance/ summoning orders passed on printed proforma were set aside by the Allahabad High Court in Vishnu Kumar Gupta & Anr. v. State of UP & Anr. Various Benches of the High Court have also passed orders directing the subordinate courts to pass cognizance/ summoning orders with application of mind, giving satisfactory reasons.

'Judge Acts Like God, He Should Not Make Mistakes': Allahabad High Court Pulls Up Magistrate For Issuing Summoning Order In Pre-Printed Format

Even on the administrative side, the High Court has issued circulars to the subordinate courts from time to time, restraining them from passing cognizance/ summoning orders on a printed proforma without application of mind.

Cognizance Can't Be Taken Without Judicial Application Of Mind: Allahabad HC

Similarly, in Amit Jani v. State of UP & Ors. (supra), the Allahabad High Court had deprecated passing of orders in printed proforma/cyclostyled formats.

In this case also, the concerned accused persons were called upon to furnish peacekeeping bonds, by way of a printed proforma.

The Court noted in the facts of that case,

"The notice/ challan under Section 107/116 /151 CrPC is on a printed proforma, on which name and address of the petitioner, name of PS, the date of report, the alleged ground, i.e, for maintaining communal harmony and the date fixed are only hand written, leaving the remaining recitals to be on a printed format including the amount of personal bond to be furnished by the petitioner. The order sheet of 9.11.2019 is also on a printed format. It appears that respondent no.5 mechanically issued notice / challan without any application of mind."

Case Title: Shiv Kumar Verma & Anr. v. State of UP & Ors.

Click Here To Download Order

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